Doe v. Coll. Bd.

• Decision Date: 24 February 2020
• Docket Number: 19 Civ. 6660 (LGS)
• Citation: 440 F.Supp.3d 349
• Parties: John DOE #1, et al., Plaintiffs, v. The COLLEGE BOARD, Defendant.
• Court: U.S. District Court — Southern District of New York

440 F.Supp.3d 349

John DOE #1, et al., Plaintiffs,

v.The COLLEGE BOARD, Defendant.

19 Civ. 6660 (LGS)

United States District Court, S.D. New York.

Signed February 24, 2020

Yasser Helal, Yasser Helal, P.C., Brooklyn, NY, for Plaintiffs.

Adam Amir, Alan Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Defendant.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiffs bring this action against Defendant, the College Board, for breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, common law fraud, due process and tort-based claims for negligent infliction of emotional distress, in connection with Defendant's cancelation of scores from the May 4, 2019, SAT exam. Plaintiffs also seek a declaratory judgment invalidating the arbitration agreement between the parties. Defendant brings this unopposed motion to compel arbitration and stay the case. For the following reasons, Defendant's motion is granted.

I. BACKGROUND

A. Factual Background

The following facts are taken from the Complaint, Defendant's memoranda of law regarding its motion to compel arbitration and other submissions. See Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 229 (2d Cir. 2016).

Defendant is a non-profit corporation organized and existing under the laws of the State of New York. Defendant owns and administers the SAT exam, both domestically and internationally. Plaintiff "John Doe #1" is a U.S. citizen parent filing this action on behalf of his high-school-age child who took the May 4, 2019, SAT exam at an unspecified location. Plaintiff "Jane Doe #2" is a U.S.-citizen high-school student who sat for the May 4, 2019, SAT exam in Cairo, Egypt. Plaintiffs "John and Jane Doe #3 through #100" are Egyptian citizens who also sat for the May 4, 2019, SAT exam in Egypt and other Middle Eastern countries. The Complaint does not make particularized allegations with respect to the age of any Plaintiff, either at the time of exam registration or at the time the action was filed.

The SAT exam is a standardized educational test used by post-secondary institutions around the world in making admissions decisions. In order to take the SAT exam, students register online via Defendant's website, or by mail using paper forms. Students must register on their own behalf; a parent or counselor cannot register for them. During this process, students are provided access to the Student Registration Booklet, which includes information about registration and test day information. The registration process requires student test takers to agree -- by either signing or "clicking" -- to Terms and Conditions ("the T&C"), which include provisions from the Student Registration Booklet. The T&C notes Defendant's obligation to provide every student taking the exam with a "fair and equitable opportunity to demonstrate college readiness" in connection with Defendant's exam security and fairness policies that are "designed to prevent anyone from gaining an unfair advantage on SAT tests."

The T&C contains the following arbitration agreement ("the Arbitration Provision"):

Other than disputes involving an "Invalid Scores" review (discussed in the "Invalid Scores" section) or infringement of the College Board's intellectual property rights, all disputes against the College Board and/or any or all of its contractors, that relate in any way to registering for or taking the SAT, including but not limited to requesting or receiving test accommodations, score reporting, and the use of test taker data, shall exclusively be resolved by a single arbitrator through binding, individual arbitration administered by the American Arbitration Association ("AAA"), under the AAA Consumer Arbitration Rules in effect at the time a request for arbitration is filed with the AAA. Copies of the AAA Rules can be located at www.adr.org. Unless the parties mutually agree otherwise, the seat and the place of the arbitration shall be New York, New York. The parties agree that the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. governs this provision, and it is the intent of the parties that the FAA shall pre-empt all State laws to the fullest extent permitted by law. No arbitration may be maintained as a class action, and the arbitrator shall not have the authority to combine or aggregate the disputes of more than one individual, conduct any class proceeding, make any class award, or make an award to any person or entity not a party to the arbitration, without the express written consent of the College Board.

The T&C also contains a section labeled "Grounds For Score Cancelation," which states:

Defendant reserve[s] the right to dismiss test takers, decline to score any test, and/or cancel any test scores when, in our sole discretion, as applicable, a testing irregularity occurs; there is an apparent discrepancy in the test taker's identification; a test taker is improperly admitted to the test center; a test taker has engaged in misconduct (see Misconduct section below); based on a test taker's testing history the validity of the score is suspect; or the score is deemed invalid for another reason, including, but not limited to, discrepant handwriting, unusual answer patterns, or plagiarism.

The Grounds for Score Cancelation contains subsections identifying specific conduct that may result in score cancelation. These include, "Testing Irregularities" (e.g., cancelation based on irregular circumstances associated with the administration of a test, including evidence of possible advanced knowledge of secure test content); "Misconduct" (e.g., cancelation based on attempting to give or receive assistance, including by copying or through the use of an answer key); "Testing History" (i.e., cancelation based on a particular test taker's testing history); and "Invalid Scores" (e.g., cancelation based on conduct involving unusual answer patterns). Some subsections also contain specific remedies in the event such conduct occurs. For example, unlike all other subsections, the Invalid Scores subsection provides that, before a test taker's scores are canceled, Defendant must "notify the test taker in writing (via email if possible) about our concerns, let the test taker submit information addressing them, and consider any information submitted." However, the Invalid Scores subsection also explains that "[i]f at any time before, during, or after a review of questionable scores we find that test misconduct has [also] occurred, we may treat the matter under our misconduct procedures." In this scenario, Defendant is not obligated to give the test taker the opportunity to submit additional information. The Invalid Scores subsection also provides that Defendant has "sole discretion in determining whether to treat potential testing violation under this section or the Misconduct section above." Finally, the Invalid Scores subsection states that when "substantial evidence still exists that scores aren't valid [for conduct classified within the Invalid Scores subsection] ... the arbitration option is available only for tests administered in the United States and U.S. territories."

After each SAT exam administration, Defendant analyzes all testing data to identify possible violations of its test-security procedures, abnormal scoring patterns and other indicators of potential misconduct or score invalidity, and then determines whether scores should be released, cancelled or subjected to further review. If Defendant determines that the conduct of certain test takers falls under the Misconduct section, administrators may recommend that their scores be cancelled. These recommendations are reviewed by senior test administrators and, if recommendations are approved, Defendant then contacts students and informs them that their scores have been canceled or withheld, among other potential outcomes.

Defendant's analysis of testing data for the May 2019 SAT identified indicia of suspect behavior in a geographically proximate cluster of several hundred test takers in the Middle East, including Plaintiffs, with statistically unlikely overlapping answer patterns. The resulting scores were therefore suspicious and required further investigation. Defendant found online discussion of misconduct at test sites in Egypt and other sites in the Middle East. Defendant's observers at test sites, and on-the-ground test administrators, also found (and confiscated) various cheat sheets with answer keys written on the clothing of test takers, their calculator covers and admission tickets.

This initial cluster included approximately several hundred test takers Defendant believed had engaged in some form of test misconduct. Evidence of misconduct included: "(1) remarkable answer similarities with groups of other test takers; (2) regional patterns of such matching answers; (3) incidents of test misconduct in the Middle East in connection with this administration; (4) prior misconduct among some of the test takers; and (5) perfect or near-perfect matches with correct and incorrect answers on confiscated answer keys." According to Defendant, the statistical significance of some of these events occurring -- without inappropriate activity by test takers -- is less than one in one hundred million. Of this cluster, Defendant then determined, based on review of evidence in each case, that the conduct of certain test takers, including Plaintiffs, fell under the Misconduct section, rather than the Invalid Score section, and therefore did not permit Plaintiffs to submit additional information because of the irrefutable evidence of impropriety. According to the terms of the Misconduct section, test administrators recommended that Plaintiffs' scores be cancelled, and then senior test administrators made the final decision, based on the overwhelming and irrefutable evidence of misconduct.

Upon receiving an email notification that their scores had been canceled because Defendant had "determined a violation of [t...